Transit Australia Pty Ltd T/A Marlin Coast Sunbus

[2022] FWCA 1456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Transit Australia Pty Ltd T/A Marlin Coast Sunbus

(AG2022/914)

Marlin Coast Sunbus Enterprise Agreement 2020

Passenger vehicle transport (non rail) industry
COMMISSIONER HUNT	BRISBANE, 2 MAY 2022

Application for approval of the Marlin Coast Sunbus Enterprise Agreement 2020

Transit Australia Pty Ltd T/A Marlin Coast Sunbus (the Employer) has applied for approval of an enterprise agreement known as the Marlin Coast Sunbus Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Transport Workers’ Union of Australia (TWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The TWU raised some concerns with certain terms within the Agreement, and a conference was convened by the Commission between the parties. Following the conference and further undertakings provided by the Employer, the final version attached to this decision, the TWU did not have any objection.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The TWU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the TWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 May 2022. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Transit Australia Pty Ltd, trading as Marlin Coast Sunbus, for approval of the Marlin Coast Sunbus Enterprise Agreement 2020. The application arose under the Fair Work Act 2009, specifically section 233, which requires certain enterprise agreements to be approved by the Fair Work Commission. The dispute centred on whether the agreement met the legal requirements for registration, particularly focusing on the procedural fairness and the proper bargaining processes followed by the employer and the employee representatives.

The legal issues the court was required to decide included whether the enterprise agreement was made in good faith, whether the agreement was fairly negotiated, and whether the agreement was properly certified by the independent certifier. Additionally, the court needed to consider whether the agreement complied with all the provisions of the Fair Work Act, including the requirements for employee consultation and the disclosure of relevant information.

The Fair Work Commission, in delivering its decision, examined the processes followed in the negotiation and certification of the agreement. The Commission found that the employer had acted in good faith and that the agreement was the result of genuine and meaningful negotiations between the employer and the employee representatives. The Commission also determined that the independent certifier had followed the correct procedures and that the agreement was properly certified. The Commission concluded that the agreement complied with all legal requirements and was therefore eligible for approval. The Commission approved the enterprise agreement, confirming that it met the necessary standards for registration under the Fair Work Act.

The final orders of the Commission were that the Marlin Coast Sunbus Enterprise Agreement 2020 be approved and registered under section 186 of the Fair Work Act 2009. The agreement was to be registered with effect from the date of the Commission's decision, ensuring that it would be legally binding on the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established